Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Kim Bum
Claim Number: FA1405001560091
Complainant is Alaska Air Group, Inc. and its Subsidiary, Alaska Airlines (“Com-plainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Kim Bum (“Respondent”), South Korea.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alaaskaairlines.com>, <alaskasirlines.com>, and <alaslaairlines.com> registered with RegisterMatrix.com Corp.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on May 19, 2014; the National Arbitration Forum received payment on May 19, 2014.
On May 19, 2014, RegisterMatrix.com Corp. confirmed by e-mail message addressed to the National Arbitration Forum that the <alaaskaairlines.com>, <alaskasirlines.com>, and <alaslaairlines.com> domain names are registered with RegisterMatrix.com Corp. and that Respondent is the current registrant of the names. RegisterMatrix.com Corp. has verified that Respondent is bound by the RegisterMatrix.com Corp. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 21, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 10, 2014 by which Respondent could file a Response to the Complaint, via e-mail messages ad-dressed to all entities and persons listed on Respondent’s registration as tech-nical, administrative, and billing contacts, and to the attention of postmaster-@alaaskaairlines.com, and postmaster@alaskasirlines.com, as well as post-master-@alaslaairlines.com. Also on May 21, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the dead-line for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 17, 2014, pursuant to Complainant's request to have the dispute decid-ed by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Not-ices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant owns the ALASKA AIRLINES service mark through its registration of the mark with the United States Patent and Trademark Office ("USPTO") (Registry No. 1,561,416, registered October 17, 1989).
Complainant uses the ALASKA AIRLINES mark in connection with the marketing of its air transportation services.
Respondent registered the <alaaskaairlines.com> domain name on June 11, 2005, the <alaskasirlines.com> domain name on June 6, 2005, and the
<alaslaairlines.com> domain name on October 6, 2005.
Each of the domain names is confusingly similar to the ALASKA AIRLINES mark.
Respondent has not been commonly known by any of these domain names.
Complainant has not authorized Respondent to use its ALASKA AIRLINES mark.
Respondent uses each of the domain names to redirect Internet users to a web-site featuring links to third-party websites, some of which compete with Com-plainant in the airline industry.
Respondent presumably generates click-through revenue from the operation of the linked pages.
Respondent lacks rights to and legitimate interests in the domain names.
Respondent has been a party to other UDRP proceedings in which it has been found to have registered and used in bad faith domain names derived from the marks of others.
Respondent’s employment of the disputed domain names disrupts Complainant’s business.
Each of the disputed domain names is an instance of typo-squatting.
Respondent has registered and uses the domain names in bad faith.
The <alaaskaairlines.com> and <alaskasirlines.com> domain names were set to expire on June 11, 2014 and June 6, 2014, respectively, but Complainant has renewed these domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) Each of the domain names registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of any of the domain names; and
(3) The same domain names were registered and are being used by Respondent in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representa-tions pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Preliminary Issue: Multiple Complainants
UDRP Rule 3(a) provides that: “Any person or entity may initiate an adminis-trative proceeding by submitting a complaint.” The National Arbitration Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
There are two Complainants in this matter: Alaska Air Group, Inc. and its subsid-iary, Alaska Airlines. They contend that Alaska Air Group, Inc. and its subsidiar-ies provide air travel services in the United States, Canada and Mexico under the ALASKA AIRLINES mark.
It has frequently been found that the Forum’s Supplemental Rule 1(e) allows multiple parties to proceed as one where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Nat. Arb. Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a part-nership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
And, in Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Nat. Arb. Forum Dec. 28, 2003), a panel treated two complainants as one where both held rights in trademarks contained within disputed domain names. Like-wise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Nat. Arb. Forum Feb. 6, 2004), a panel found a sufficient link between otherwise separate complainants where there was a license between them regarding use of the mark there in issue.
On the undisputed facts presented in the Complaint, we are satisfied that there is a sufficient nexus between the two entities identified as Complainant to justify their proceeding together as one. Accordingly, Alaska Air Group, Inc. and its subsidiary, Alaska Airlines, will, for all purposes in this proceeding, be collectively referred to as “Complainant.”
Complainant has rights in the ALASKA AIRLINES service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006):
Complainant has established rights in the … mark [under Policy
¶ 4(a)(i)] through registration of the mark with the USPTO.
This is true without regard to whether Complainant’s rights in its mark arises from its registration in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here South Korea). See, for example, Renaissance Hotel Hldgs, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether a UDRP com-plainant has registered its trademark in the country in which a respondent re-sides, only that it can establish rights in its mark in some jurisdiction). See also W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. For-um Aug. 24, 2010) (finding that “USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a dif-ferent country.”).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that each of the domain names <alaaskaairlines.com>, <alaskasirlines.com> and <alaslaairlines.com> is confusingly similar to Com-plainant’s distinctive ALASKA AIRLINES service mark. In each instance the domain name differs from the mark by deletion of the space between the terms of the mark and substitution of a different letter for one of the letters in the mark, together with the addition of the generic top-level domain (“gTLD”) “.com”. These alterations of the mark, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) the panel there finding that the elimination of spaces between the terms of the mark of another and the addition of a gTLD in creating a domain name do not establish distinctiveness from the mark under Policy ¶ 4(a)(i).
See also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000), where a panel determined that “[a] domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive.”
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by the disputed domain names, and that Complainant has not authorized Respondent to use the mark at issue.
Moreover, the WHOIS record identifies the registrant of each of the disputed domain names only as “Kim Bum,” which does not resemble any of the domain names. On this record, we conclude that Respondent has not been commonly known by any of the contested domain names so as to have acquired rights to or legitimate interests in any of them within the meaning of Policy ¶ 4(a)(i). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) the panel there finding that a respondent failed to establish rights to or legitimate interests in the <emitmortgage.com> domain name where that respondent was not authorized to register domain names featuring a UDRP complainant’s mark and failed to submit evidence that it was commonly known by the domain name.
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the disputed domain names to redirect Internet users to a website featuring links to third-party websites, some of which compete with Com-plainant in the airline industry, and that it is presumed that Respondent generates click-through revenue from the operation of those linked pages. This employ-ment of the domain names is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (finding, under Policy ¶ 4(c)(i) and ¶ 4(c)(iii), that a respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use, and so failed to show that it had rights to or legitimate interests in a contested domain name within the compass of those provisions of the Policy, where “the website resolving from the disputed domain name displays links to … products and services, which directly compete with Complainant’s business”).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent has been a respondent in several other UDRP proceedings in which panels have determined that it reg-istered and used domain names in bad faith. See Ashley Furniture Industries, Inc. v. Kim Bum LLC / Kim Bum, FA 1467301 (Nat. Arb. Forum November 27, 2012); W.W. Grainger, Inc. v. Kim Bum LLC / Kim Bum, FA 1470241 (Nat. Arb. Forum December 26, 2012); and The Boeing Co. v. Kim Bum, FA 1510222 (Nat. Arb. Forum August 30, 2013). Under Policy ¶ 4(b)(ii), this pattern of bad faith registration and use of domain names stands as proof of bad faith in the regis-tration and use of the domain names in this proceeding. On the point, see, for example, TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009):
These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).
We are also convinced by the evidence that Respondent’s employment of the contested domain names as alleged in the Complaint disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this is evidence of bad faith in the registration and use of the domain names. See Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (finding, under Policy ¶ 4(b)(iii), that where a respondent’s website featured links to websites competing with the business of a UDRP complainant, thus disrupting that complainant’s business, that respondent’s registration and use of the domain name was in bad faith).
In addition, the evidence is plain that Respondent uses the disputed domain names, which are confusingly similar to Complainant’s ALASKA AIRLINES ser-vice mark, to seek to profit by misleading Internet users as to the possibility of Complainant’s affiliation with the domain names. Under Policy ¶ 4(b)(iv), this, too, is proof of Respondent’s bad faith in the registration and use of the domain names. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006):
Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Finally, under this head of the Policy, it is evident that each of the domain names <alaaskaairlines.com>, <alaskasirlines.com> and <alaslaairlines.com> repre-sents an instance of typo-squatting, i.e.: the creation of a domain name which takes advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they wish to do business. Typo-squatting is itself evidence of bad faith in the registration and use of a do-main name. See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003), the panel there explaining that typo-squatting:
diverts Internet users who misspell Complainant’s mark to a web-site apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).
For all of these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <alaaskaairlines.com>, <alaskasirlines.com>, and <alaslaairlines.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: June 23, 2014
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